Monthly Archive for December, 2011

The holiday season can be tough on the wallet for a lot of people, especially during this terrible economy of ours. Now unless you’re lucky enough to be in the one percent of society, chances are you’re probably looking at ways to scale back your gift-giving this year while at the same time still find presents that will light up the faces of intended recipients. That’s why finding out about stories like this one really suck.

Is there no decency anymore? I mean, stealing presents meant for Christmas gifts? That’s straight out of Dr. Seuss, the only difference being that in all likelihood had the cops not intervened there probably wouldn’t had been a last minute change of heart to save Christmas on the part of the suspects. Also I don’t think Kristen Casey and Manual Sheehan, the alleged thieves in question pictured to the left, stole the gifts out of a dislike for the townspeople, but rather for good old-fashioned money. The couple was apparently found with over 100 pilfered packages crammed into their apartment. Local Massachusetts police were tipped off after receiving an increased number of reports from citizen saying the packages they ordered were missing from their door steps. Police eventually began tailing UPS and other local postal delivery trucks before spotting the suspects in a car filled with stolen delivery boxes, which in turn led them to the suspects’ apartment.

It’s an interesting story that appears to have a happy ending. However, the one thing that I didn’t see in any news reports on it so far is any extensive mention on how the alleged thieves were able to get the delivered packages so easily. They didn’t have to crack open mailboxes or bust into delivery trucks. No, all they had to do was walk up to the front door of homes and pick up the boxes left out in the open by the mail carriers in charge of them.

For years internet complaint boards have been filled with stories of this type of lazy postal delivery practice. UPS, USPS, FedEx, DHL, and so forth, have all fielded complaints from people for years that the deliverymen and women in charge of their packages were simply dumping them at their front door or in their backyards, leaving them exposed to the elements and often without so much as a sticky note to let the owner know they’re there. And then somehow these delivery services are surprised when packages get stolen. Gee, maybe it’s because you left them out in the middle of the day on a doorstep for everyone to see.

Anyway, mailmen and mailwomen stupidity aside, many times in life when one becomes the victim of mail theft and/or damage one must eventually move to rectify the situation, after all the cursing and complaining of course. But fear not, having your postal goods lifted or harm isn’t as hopeless of a situation as it may initially seem to be. Being a victim of this sort of egregious behavior, there are a few things that you can do to get your packages or at least the monetary value of it back.

1) Document the scene

This is the most important first step. If your package is damaged, take pictures of it right away. Take a picture of how it was left, then zoom in and snap shots of the damaged parts. Video recordings are good, as well.

2) Keep all the packaging material that arrived with it and the tracking number

Many times, mail carriers won’t listen to your complaint if you can’t show that the package was damaged because of their ineptitude. Keeping the packing material and tracking number will show the carrier that your mail was packed correctly and allow them to match your parcel with their service.

3) Register a complaint with the mail carrier

It’s a coin toss as to whether missing/stolen mail or damaged mail is easier to recover, either way you’re going to have to tell your carrier about your issue. Every carrier has a complaint system to navigate. It’s a hassle, but generally one of the easiest first attempts to get some sort of recovery for a jacked parcel.

4) File a police report

If your mail was stolen or intentionally damaged, telling the fuzz is a necessity to create a traceable complaint trail. It also lets your carrier know that you mean business.

5) Email the executives of your mail carrier and contact the local media and websites

No businessperson worth their salt wants bad press. It costs them money and countless headaches. So if you’re still not getting a satisfactory response from your mail carrier’s reps, then go over their heads and contact their superiors. Keep beating your drum and don’t feel as if your story isn’t compelling enough to catch some press time. Write, write, and write. You’ll be surprised at what may result.

6) Lawsuit time

If you’re still stuck holding the ball and you feel either the value of your missing or damage parcel is worth a legal fight, then you may want to consider suing your carrier for damages. If you’ve documented your turmoil well, then a good lawyer may be able to advise you to victory.

Last October, a fascinating news story involving escaped animals created an uproar in the media. In Zanesville, Ohio, a man named Terry Thompson opened the cages of over 50 exotic wild animals that he owned and kept on his private reserve. The escaped animals then proceeded to march around town, creating a literal urban safari a la Jumanji, causing much fear and alarm for the town’s residents.

Some of the wild animals included leopards, black bears, 300-pound Bengal tigers, grizzly bears, and lions. Yikes! Fortunately, no one was injured, although sadly all of the beasts had to be put down by local law enforcement. To make things more bizarre, Thompson ended up taking his own life by gunfire shortly after releasing the animals. Apparently, he had more than his lion’s share of personal problems.

This incident raises some questions in my mind about the laws governing the ownership of wild, dangerous animals. Just what are the rules for keeping wild animals? What type of precautions must keepers of wild animals take? And when does a person become liable for an escaped animal?

According to most state laws, the care of wild animals like lions, tigers, and bears falls under a category known as “strict liability”. Strict liability is somewhat unique, and stands like a lone wolf in the realm of civil tort law. Basically, strict liability rules impose civil liability on a person, even if they didn’t intend to commit a violation of law.

For instance, an owner of wild animals can be held liable for property damage or injuries simply if their wild animals escape from their cages, even if they took the necessary precautions to keep the animals locked in. So, in the Zanesville, Ohio case, Mr. Thompson could have been held liable even if he hadn’t opened the cages, and even if the animals escaped without his assistance. Strict liability principles dictate that wild animals are just too dangerous, and their keepers will be held to a much higher standard of care than normal.

Strict liability laws exist to prevent unnecessary injuries and property damage. The logic is that the animal or product is more dangerous than usual, and the owner is creating a high degree of risk to the surrounding community. A person probably wouldn’t be subject to strict liability laws if they kept a harmless animal like a rabbit. But they certainly might be if they’re keeping a deadly, lethal bear capable of inflicting major bodily damage.

Strict liability principles can also involve other matters besides wild animals, such as the transport of super-hazardous materials (e.g., oil spill claims), and certain defective products. But are they fair? I mean, is it ok to hold someone liable even if they didn’t intend to inflict harm? Many think that strict liability laws are effective, because they force people to think twice before engaging in risky activity or before obtaining highly dangerous items. They can sometimes result in very beastly legal consequences if someone gets hurt.

But I think that strict liability laws are somewhat toothless, for a few different reasons. To begin with, most people probably don’t even know about strict liability rules. Your average Joe or Jane usually won’t be thinking about strict liability on an everyday basis. And secondly, strict liability laws only provide a remedial mechanism after something dangerous has already happened, like an oil spill or a products liability injury.

I agree very strongly with the residents of Zanesville, who complained that legislation simply isn’t, well, strict enough for owners of escaped exotic animals. A more thorough screening process needs to be implemented for persons who want to import wild animals for private keeping. For instance, Mr. Thompson may very well have had a mental health issue- such an important factor should have been considered before he was allowed to even get the animals.

While it may seem that strict liability rules are abstract and inapplicable, the reality is, some people might be subject to these laws without being aware of it. For example, I know many people who are fond of keeping pets like venomous snakes and spiders. These types of pets may expose the owner to strict liability if the animal escapes. Even certain types of fishes and some dogs can be included under strict liability rules, so it’s good to know the implications of owning such pets.

With all that said, I wish you a safe, liability-free holiday season and an awesome 2012. Feel free to go ape at your white elephant parties, but do think twice before going out and buying a zoo for the holidays to rescue animals. It might seem like a novel showcase of good will, but it could get you into trouble, even if you didn’t mean to.

I’m not a huge fan of Maricopa County Sheriff Joe Arpaio. I’ve written about him before. While I understand the appeal of his “get tough” approach to fighting crime, I think that his methods run roughshod over the Bill of Rights. And, to be frank, he strikes me as having a serious lust for power. It’s funny how the people who want power the most are usually the ones who shouldn’t have it.

Lately, the federal government has been keeping a close eye on the Maricopa County sheriff’s office, investigating it for violations of federal civil rights law. It now looks like this conflict is finally coming to a head. The U.S. Justice Department has, for the first time since the investigation began, openly alleged that the Maricopa County Sheriff’s office routinely violates the U.S. constitution, as well as federal civil rights laws.

They have given the sheriff’s department an ultimatum: enter a legally-binding (and court-enforceable) agreement with the Justice Department to cease all unlawful activities, or face a civil lawsuit seeking to compel the department to comply with federal laws.

The allegations made by the federal government include a culture of racial profiling, discrimination, and routine violations of suspects’ rights to due process and privacy.

While none of these allegations have been proven, they are troubling nonetheless. In response, the Department of Homeland Security has suspended the authority of the Maricopa County sheriff’s department to investigate the immigration status of suspects it arrests (immigration is a federal matter, but the federal government delegates some of its enforcement power to state and local authorities, and has the right to revoke that power, as well).

Also, the sheriff’s single-minded obsession with illegal immigration has consumed a huge portion of the office’s resources. As a result, some 400 alleged sex crimes in Maricopa County have gone without proper investigation.

Of course, Joe Arpaio claims that the allegations are purely political. But it should be noted that this federal investigation began back in 2008, when George W. Bush was president. However, most of the focus has been on the Obama administration’s role, partly because the investigation was not disclosed to the public until after Obama took office.

Obviously, I hope that the Maricopa County Sheriff’s office cooperates with the Justice Department in this matter. Many other large law-enforcement agencies, including those in Los Angeles and New Orleans, have cooperated with the federal government in instituting civil rights reforms in the past, without the need for the courts to intervene.

But if they don’t cooperate, I hope the Justice Department aggressively pursues this case. Since 9/11 (and before then, to a lesser extent), some law enforcement agencies seem to be under the impression that we have to choose between effective law enforcement and civil liberties. This is simply untrue. And the Justice Department seems to finally be recognizing this fact. After all, if people can’t feel secure in their own homes from the actions of government agents who are supposed to be protecting them, how can we plausibly claim that we’re being kept safe?

I’m sure there are some people in Maricopa County who genuinely agree with Sheriff Joe’s goals and methods, and they will likely be upset with what they see as meddling by the federal government in a state’s internal affairs. Like it or not, however, Maricopa County is still part of the United States, and the U.S. has this thing called the constitution, which limits what states can do.

Plenty of American cities have managed to protect basic civil liberties while still maintaining a reasonable level of public safety. Hopefully, Maricopa County can do the same.

Of course, in the United States, most sheriffs are elected officials. If the voting public becomes fed up with the tactics of a particular sheriff, they can vote him or her out of office. Joe Arpaio has been re-elected many times, so it would seem, on the surface, that the people of Maricopa County approve of Sheriff Apraio’s objectives and methods. However, even if he has popular support of his constituents, the constitutional rights of individuals are not subject to majority vote.

Certain principles, like due process, the right to privacy, free speech, and the right to equal treatment under the law, regardless of race or national origin, are inviolable under the Constitution. They must be upheld, no matter how inconvenient or unpopular it is to do so. Hopefully, if these allegations are true, the appropriate action is taken to ensure that the Maricopa County Sheriff’s department commits itself to upholding the relatively modest standards set by the Constitution, and is able to move on from this unfortunate situation.

With the ever omnipresent ghost of Christmas commercialization turning the Season of Giving into the time of year where corporate fat cats can get their poorly run companies back into the black just enough to justify taking their huge bonuses, it nice to see that some businesses still know what it means to give back to their community.

Not only is Curtis Masters’s benevolence, in the form of his pay-what-you-want plumbing services, a much needed lifeline for poor Texans with a plumbing problem or two, but Masters’s kindness is also doing wonders to repair the stereotypical image of the shady plumber. That kind of PR is priceless. Masters has apparently been operating his business this way for over 15 years. But according the 63-year-old plumber, the move to a pay-what-you-want operation wasn’t so much a strategic marketing move, but rather a call from God. Masters states that he was told by God to use his master (ba-dum-bump) plumbing skills to help people in need and that he believes as long as he functions like this, God will provide for him. Regardless of your views on religion, you have got to admire Masters’s commitment to his beliefs and his customers.

Now what Masters is doing is obvious very generous, especially in this current economic recession of ours; but what caught my eye about the story was the more obvious fact that there are probably a lot of people out there who would be perfectly happy letting Masters walk away with nothing for his work. In fact, in the new report Masters even states that he has had some customers who seemed like they could pay more, but instead paid nothing for very complex work he did for them. Of course this is to be expected when one functions on a pay-what-you-want business model. Healthy fast food chain Panera Bread learned this the hard way after it had to shutter its third pay-what-you-want experiment in Portland, Oregon after it was getting too many non-paying customers and local homeless shelters started sending their hungry clientele its way.

But still, it seems a little wrong that people could easily take advantage of Masters’ kindness. One of my friends asked me after reading this story if Masters could opt to take any legal action against any customers who he felt paid him less than what he should have gotten. This is a question that seems like it should have an easy answer, but it turns out that like most things in law, the answer is a little more complicated and ultimately unclear.

When parties decide to exchange promises to perform duties in exchange for money or something in return, a contract is formed. In legal terms, this contract formation process is called offer, acceptance and consideration. If any of those factors are missing, a contract isn’t formed. In addition, even when a contract is not clearly laid out, courts can infer that an implied-in-fact contract was created and award damages for a breach of contract. An implied-in-fact contract usually arises in situations where services are exchanged for pay, as in Masters’ plumbing work. These types of contracts occur when a party is unjustly enriched by receiving a benefit that they didn’t pay for, but knowingly accepted. In these cases, a court can award the party that gave the benefit the fair market value for his or her work.

So it would seem that under an implied-in-fact contract theory, Masters and other do-gooders could possibly recover payment from entitled deadbeats too cheap to cough up some dough. Masters provided a plumbing service, his customers authorize and allow him to work on their pipes, and they are obviously enriched by the services he offers because their plumbing is fixed. All this appears to be grounds for a court to infer the formation of an implied-in-fact contract. But the problem comes in when you factor in how Masters and other pay-what-you-want businesses functions.

Masters tells his customers up front in person and in writing that they are allowed to pay whatever they can afford for the work he provides. Courts have long held that parties are free to contract in whatever way they wish as long as the parties both enter their contract knowingly without undue influence and that the agreement itself is legal. From this perspective, an argument can easily be made that Masters, and other businesses like his, entered into the contract fully aware that he could come out of the other end with nothing, and that furthermore he expected that it could happen. So in this sense, Masters wouldn’t have any recourse against non-payers.

What’s the answer? Like I said, it’s not clear. But it definitely would be an interesting case for a court to decide since there are good arguments to be made on both sides.

What do you guys think of pay-as-you-go business models? Should cheapskates be forced to pay if they can afford it and how much?

As you may know, you have a constitutional right to have a lawyer appointed to defend you in most criminal cases, if you can’t afford to hire a lawyer. This makes perfect sense. After all, in a criminal case, a whole lot can be at stake. Usually, losing a criminal case means, at the very least, losing one’s freedom for a fairly long period of time. And, in the most extreme cases, the defendant’s life could be at stake. So, if we want to believe that we live in a free and fair society, we have to do absolutely everything we can to ensure that all criminal defendants get a fair trial. One essential element of that is a defense by a competent attorney, whether the defendant can afford it or not.

However, the law generally does not recognize a constitutional right to a free court-appointed lawyer in a civil lawsuit, whether you’re the plaintiff or the defendant. To some people, this doesn’t make sense, because in many civil cases, just as much can be at stake as in a criminal case.

In a landlord-tenant lawsuit, a loss may result in a family being evicted from their apartment, and thrown out onto the street. In a lawsuit over eligibility for disability benefits, the applicant’s ability to obtain basic healthcare may be at stake. And, if parents are accused of abusing or neglecting their children, the state may initiate a civil action to have the children removed from their home (this issue is completely separate from the parents’ criminal liability for the alleged abuse). Generally, the law says that you have no right to a court-appointed attorney in these cases, even if you can’t afford one, and everything is at stake.

Many individuals and organizations, however, are seeking to change that. The American Bar Association has advocated for state and federal authorities to provide attorneys in adversarial legal actions where “basic human needs” are at stake.

This is sometimes called a “Civil Gideon” rule, which refers to the Supreme Court case of Gideon v. Wainwright, which first recognized the constitutional right to court-appointed counsel for defendants in criminal cases.

California has led the way in this push. Back in 2009, the state legislature passed a law which closely mirrors the policy advocated by the ABA. It authorizes funding for court-appointed attorneys to indigent parties in civil cases that involve basic human needs, such as eviction and foreclosure cases, child custody cases, and cases involving eligibility for healthcare benefits such as Medicare or Medicaid. Anyone whose income is 200% above the poverty line or lower is eligible for court-appointed attorneys in these cases. For a family of four, this is an annual income of a little over $44,000.

Personally, I think that this is a sound policy, at least in theory. With the budgets of many states (notably California) being strained to the breaking point, adding yet another funding mandate is a tough pill to swallow for many Californians.

Also, some (mostly) conservative commentators have noted that such a rule will make it more difficult and expensive for landlords to carry out legitimate and justified evictions, which could end up raising rents on everybody, including the low-income renters that this law is intended to protect.

That’s probably the most compelling argument against this law. However, I think the pros of a rule like this most definitely outweigh the cons. It’s pretty hard to argue that a parent who is facing the prospect of losing custody of their children shouldn’t have a court-appointed lawyer in such cases. And if a severely disabled individual is denied SSDI benefits, it’s hard to argue with a straight face that they shouldn’t be able to pursue every legal avenue available to them to appeal this decision, as effectively as possible.

Obviously, such a system can never be perfect, and many practical issues come up, particularly having to do with its implementation. For example, should there be a dedicated state organization staffed by full-time lawyers, tasked with handling cases like these (like the office of the public defender)? Or should all California lawyers be required to participate in it? There are advantages and disadvantage to both approaches.

Another possible sticking point is the question of where to draw the line on what constitutes a basic human need. It’s likely that the courts will become involved in clarifying this language. After all, it would be prohibitively expensive to provide indigent parties with a lawyer in every civil case. And that was never the intent of this law.

In any case, I think the ABA has made the right decision in calling on state and federal governments to provide court-appointed lawyers in some civil cases. Given the fact that just as much can be at stake as in criminal cases, it’s really hard to argue that the same interests of justice do not apply to some civil matters.